United States Court of Appeals

For the Eighth Circuit

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No. 20-3397

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Jackie L. Busey

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Jefferson City

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Submitted: May 14, 2021

Filed: August 25, 2021

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Before COLLOTON, WOLLMAN, and KOBES, Circuit Judges. 

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COLLOTON, Circuit Judge.

The district court1

 revoked Jackie Busey’s supervised release based on

violations of conditions of release, and sentenced Busey to twenty-four months’

imprisonment. Busey appeals, arguing that the court deprived him of his right to

1The Honorable Stephen R. Bough, United States District Judge for the

Western District of Missouri.
confront a deputy marshal involved in the investigation of his violations. We affirm

the judgment.

The violation at issue came during Busey’s second tour on supervised release. 

He was convicted in 2014 of attempt to pass and possession of counterfeit

obligations, see 18 U.S.C. § 472, served an eighteen-month term of imprisonment,

and commenced a thirty-six month term of supervised release. In July 2017, the court

revoked Busey’s supervised release after he tested positive for narcotics five times

and was twice arrested for possessing controlled substances. The court sentenced him

to six months’ imprisonment followed by twenty-four months’ supervised release. 

He began this second term of supervised release in December 2017, and continued

on release into 2020 despite some violations of his conditions.

In August 2020, however, the court issued a warrant for Busey’s arrest after the

probation office reported that Busey had traveled to unauthorized locations and

possessed marijuana. Officers arrested Busey at his residence, and found a pistol,

20.7 grams of marijuana, 14.4 grams of MDMA (ecstasy), and 60.4 grams of an

opioid substance. The probation office filed another report alleging that Busey

possessed with intent to distribute a controlled substance and possessed a firearm.

At a hearing, Busey conceded that he traveled to unauthorized locations, but

contested the other alleged violations. The evidence showed that Busey resided with

his wife, Ebony Hicks, in a one-bedroom apartment rented to Hicks’s brother, Robert

Anderson. Probation officer Werning visited the apartment approximately ten times

to check on Busey over the course of a year. She met with Anderson during the first

home visit, and he agreed that Busey and Hicks could reside there. On all future

visits, Anderson was not present.

Werning testified that she visited Busey’s apartment on August 24, 2020, saw

marijuana in the apartment, and witnessed Busey attempt to hide it. She also testified

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that after Busey’s arrest on August 28, Deputy Marshal Thomas informed her that a

firearm was found on the apartment’s bedroom floor, and that drugs were thrown out

of a window after officers entered the apartment.

Special Agent Miller of the Bureau of Alcohol, Tobacco, Firearms &

Explosives testified that he went to Busey’s apartment on August 28 after Deputy

Marshal Thomas told him that Busey had been arrested and that a firearm was found

in plain view. Miller testified that after he arrived at the apartment, one of his

colleagues found a loaded firearm on the floor of the bedroom. Miller seized the gun

from the bedroom and found sixty grams of opioid substance on top of the kitchen

cabinets. According to Miller, Hicks told him that Busey was leaving the bedroom

just before he was arrested, and that the gun and drugs did not belong to her.

Busey objected to Miller’s testimony recounting Thomas’s statements on the

ground that he had a right to confront Thomas. The government argued that calling

Thomas was impractical because the arrest involved agents from “around the nation,”

and that Miller’s testimony was reliable. The court overruled the objection, reasoning

that Miller’s testimony as an investigating officer was permissible. But on crossexamination, Miller testified that Thomas was a deputy marshal in Kansas City, the

venue where the hearing was held. Busey renewed his objection to Miller’s testimony

about Thomas’s statements, but the court overruled it again.

The court ultimately found that the government established a Grade A violation

for possession with intent to distribute a controlled substance based on “distribution

level quantities” of opioid substance in the kitchen, a Grade B violation for

possession of the gun, and Grade C violations for possession of a controlled

substance and failure to comply with location monitoring. See USSG § 7B1.1(a). 

The court calculated an advisory guideline range of 30 to 37 months, which exceeded

the statutory maximum penalty of twenty-four months’ imprisonment, see 18 U.S.C. 

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§ 3583(e)(3), so the statutory maximum became the guideline sentence. USSG

§ 7B1.4(b)(1). The court then sentenced Busey to twenty-four months’

imprisonment.2

On appeal, Busey argues that the district court violated his right to confront

Deputy Thomas under the Confrontation Clause, the Due Process Clause, and Federal

Rule of Criminal Procedure 32.1. There was no Sixth Amendment violation; a

revocation proceeding is “not part of a criminal prosecution,” so the Confrontation

Clause does not apply. United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008).

In United States v. Bell, 785 F.2d 640 (8th Cir. 1986), however, this court

recognized a due process right to confront witnesses in revocation proceedings unless

the government shows good cause for not calling a witness. Id. at 642. A district

court must balance the interest in confrontation “against the grounds asserted by the

government for not requiring confrontation.” Id. There are no “fixed rules,” but

courts “assess the explanation the government offers of why confrontation is

undesirable or impractical” and “the reliability of the evidence which the government

offers in place of live testimony.” Id. at 642-43. Rule 32.1(b)(2)(C) similarly

provides for confrontation unless “the interest of justice does not require the witness

to appear.”

Busey contends that the district court erred in allowing Miller’s testimony

because there was no adequate explanation for the government’s failing to call

Thomas as a witness. The district court ruled that the disputed testimony was

admissible under the balancing test of Bell. And Bell did not address whether

confrontation is required where the testimony offered is demonstrably reliable, but

2Although the district court clearly found a Grade A violation at the hearing,

the written judgment does not list that violation. The district court may correct a

clerical error in the judgment at any time. See Fed. R. Crim. P. 36.

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it would be only a modest burden to produce the declarant. Id. at 643. The decision

in United States v. Zentgraf, 20 F.3d 906 (8th Cir. 1994), however, arguably

transmogrified the impracticality of confrontation from a sufficient condition for

making a “strong showing of good cause,” Bell, 785 F.2d at 643 (emphasis added),

into a necessary condition for any showing of good cause. Zentgraf, 20 F.3d at 910;

see United States v. Sutton, 916 F.3d 1134, 1139 (8th Cir. 2019). Even so, if we

assume for the sake of analysis that there was a violation of Busey’s due process

rights in admitting Miller’s disputed testimony, we conclude that any error was

harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24

(1967).

Busey identifies two statements that he claims were improperly admitted. First,

he points to Miller’s testimony that Thomas informed him that Hicks and Busey were

“coming from the bedroom upon the marshal’s breaching the front door.” Second,

he cites Miller’s testimony that Thomas found a firearm in “plain view” in the

bedroom. He asserts that this testimony was prejudicial because the statements

placed him “near the window where drugs were discarded” and near a firearm in

“plain view.”

Other admissible evidence, however, established that Busey possessed with

intent to distribute the controlled substance found on top of the kitchen cabinets in

the apartment. Possession of a controlled substance requires a district court to revoke

supervised release, 18 U.S.C. § 3583(g)(1), and possession with intent to distribute

is a Grade A violation that determined Busey’s advisory sentencing guideline range. 

USSG § 7B1.1(a)(1), (b); see id. § 4B1.2(b). Because the statements that Busey

identifies do not concern the Grade A violation based on Busey’s possession with

intent to distribute the sixty grams of opioid substance found in the kitchen, any error

did not affect the outcome of the proceeding. See United States v. Malone, 846 F.

App’x 355, 362 (6th Cir. 2021).

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In his reply brief, Busey argues that Thomas’s statements were necessary to the

finding that he possessed the drugs in the kitchen because the drugs thrown from the

window of the apartment and his alleged possession of the gun were “circumstantial

evidence” that he possessed the drugs in the kitchen. He asserts that these facts were

critical because his brother-in-law rented the apartment, and Hicks also lived at the

apartment, so there were other parties who might have possessed the drugs in the

kitchen. The district court, however, did not connect the drugs thrown from the

window or the finding on the gun in the bedroom to the finding on the drugs in the

kitchen, and there is nothing to suggest that the Grade A violation hinged on these

facts.

Any error was also harmless because substantial unchallenged evidence

supported the Grade B violation for possession of the firearm, and Thomas’s reported

statements were largely cumulative and unnecessary to the finding. See United States

v. Montgomery, 896 F.3d 875, 879 (8th Cir. 2018). Miller testified that Hicks told

him that she and Busey were “coming from the bedroom to the front door when the

marshals breached,” and that the gun was not hers. Busey does not argue on appeal

that this testimony was improper; Hicks was present in the courtroom and could have

been called by the defense for cross-examination. Miller explained that another agent

searched the bedroom with him and found the gun on the floor.

Busey points out that Anderson rented the apartment, and that probation officer

Werning saw Hicks’s cousin in the apartment on August 24. But neither person was

present when the gun was found on August 28, and Werning testified that she had not

seen Anderson in nearly a year. Miller testified that Busey’s wallet was found in the

bedroom, and that no bedding, toiletries, or luggage indicated that anyone was

sleeping in the living room. Even without the objected-to testimony from Miller

relating statements from Thomas, there is no reasonable doubt that the court would

have reached the same finding about Busey’s possession of the firearm.

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To the extent the court considered Thomas’s hearsay statements in deciding an

appropriate sentence, there was no error. The confrontation right recognized in Bell

is limited to the question whether release should be revoked. This question was

answered by Busey’s possession of a controlled substance. 18 U.S.C. § 3583(g)(1). 

Due process generally does not require confrontation during sentencing following a

conviction, see United States v. Wise, 976 F.2d 393, 397-98 (8th Cir. 1992) (en banc),

and due process does not require any greater protection in the sentencing phase of a

revocation proceeding. See United States v. Williams, 847 F.3d 251, 254 (5th Cir.

2017); United States v. Ruby, 706 F.3d 1221, 1226-28 (10th Cir. 2013). 

The judgment of the district court is affirmed.

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